JUDGMENT Number 29/PUU-XIV/2016 FOR THE SAKE OF JUSTICE BASED ON THE ONE AND ONLY GOD THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA [1.1] Adjudicating the constitutional case at the first and final instance, handed its decision in the case of Review on the Law Number 16 of 2004 regarding the State Attorney of the Republic of Indonesia against the Constitution of the Republic of Indonesia of 1945, petitioned by: 1. Name : Irwansyah Siregar Occupation : Entrepreneur Citizenship : Indonesia Address : Jalan Rinjani I, RT/RW 009/003, Jembatan Kecil, Singaran Pati, Bengkulu Being the Petitioner I; 2. Name : Dein Nuryadi Occupation : Entrepreneur Citizenship : Indonesia Address : Jalan Kinibalu, RT/RW 001/001, Padang Jati, Ratu Samban, Bengkulu Being the Petitioner II; In this matter based on a Special Power of Attorney dated 29 February 2016, have granted a power to Sunggul Hamonangan Sirait, S.H, M.H., Ignatius Supriyadi, S.H., and Hertanto, S.H, Advocates with the office of SHS Law Office, having its domicile in Apartemen Kalibata City S/05/CF, Jalan Kalibata Raya, Number 1, Village (Kelurahan/Desa) Rawajati, Sub-regency (Kecamatan) Pancoran, Jakarta 12750, in this matter either jointly or severally acting for and on behalf of the authorizers; Hereinafter referred to as the Petitioners; [1.2] Reading the petition of the Petitioners; Hearing the testimony of the Petitioners; Hearing and reading the testimony of the President; Reading the testimony of the People’s Representative Council (Dewan Perwakilan Rakyat); Hearing and reading the expert testimony of the Petitioners and the President; Examining the evidences of the Petitioners; Reading the conclusion of the Petitioners; 2. STATE OF THE CASE [2.1] Considering whereas the Petitioners have filed a petition by the petition dated 3 March 2015 received at the Office of the Clerk of the Constitutional Court (hereinafter referred to as the Office of the Clerk of the Court) on the date 3 March 2016 based on the Deed of Receipt of Dossier of the Constitutional Court of the Republic of Indonesia | 1 Case Number 34/PAN.MK/2016 and registered in the Book of Registry of Constitutional Cases on the date 21 March 2016 under the Number 29/PUU-XIV/2016, which has been corrected and received at the Office of the Clerk of the Court on the date 8 April 2016, describing the following matters: I. THE CONSTITUTIONAL COURT IS AUTHORIZED TO EXAMINE, ADJUDICATE AND TO DECIDE ON THIS PETITION 1. Whereas the Petitioners petitioned to the Constitutional Court (the “Court”) to conduct a judicial review on the material content of Article 35 letter c along with its Elucidation in the Law Number 16 of 2004 regarding the State Attorney of the Republic of Indonesia (the “Law regarding the State Attorney”) against Article 28A, Article 28D section (1), Article 28I section (1) and section (2) of the Constitution of the Republic of Indonesia of 1945 (the “Constitution of 1945”). 2. Whereas Article 24C section (1) of the Constitution of 1945 grants to the Court the authority to adjudicate at the first and final instance the decision of which is final among others to review a Law against the Constitution. That basic authority was then set out further in Article 10 section (1) letter a of the Law Number: 24 of 2003 regarding the Constitutional Court as has been amended by the Law Number 8 of 2011 regarding the Amendment to the Law Number 24 of 2003 regarding the Constitutional Court (the “Law on the Constitutional Court”), and Article 29 section (1) letter a of the Law Number 48 of 2009 regarding Judicial Powers (the “Law regarding the Judiciary”). 3. Whereas due to the petition of the Petitioners being a review on Article 35 letter c along with its Elucidation in the Law regarding the State Attorney against Article 28A, Article 28D section (1), Article 28I section (1) and section (2) of the Constitution of 1945, then according to the law the petition of the Petitioners as such (a quo) has been petitioned in accordance with the applicable laws and regulations, and therefore the Court has the authority to examine, to adjudicate and to decide on the petition of the Petitioners. II. THE PETITIONERS POSSES LEGAL STANDING TO FILE THIS PETITION 4. Whereas based on the provision of Article 51 section (1) of the Law regarding the Constitutional Court along with its Elucidation, there are two conditions to be complied with by a petitioner in order to file a petition to review a Law against the Constitution of 1945 (legal standing), namely (i) the fulfillment of the qualification to act as a petitioner, and (ii) there are constitutional rights and/or authorities of a petitioner that have been harmed by the applicability of a Law. With regard to the parameter of a constitutional loss, the Court has granted its understanding and qualification, namely it has to comply with 5 (five) conditions as described in the Decision Number 006/PUU-III/2005 and Number 011/PUU-V/2007, as follow: a. there are constitutional rights and/or authorities of the Petitioner granted by the Constitution of 1945; b. whereas those constitutional rights and/or authorities of the Petitioner are assumed by the Petitioner to have been harmed by a Law to be reviewed; c. whereas the loss of constitutional rights and/or authorities of the Petitioner as referred to have a specific (special) nature and is actual or at least bears the potential which according to good reasoning can be ascertained that it will occur; d. there is a causal relationship (Dutch: causal verband) between such loss and the applicability of a Law, against which a review is petitioned; e. there is the possibility that by the granting of the petition, the loss of constitutional rights and/or authorities as postulated will not or will no longer occur. Constitutional Court of the Republic of Indonesia | 2 5. Whereas the Petitioners are private persons Indonesian citizens whose constitutional rights as regulated in Article 28A, Article 28D section (1), Article 28I section (1) and section (2) of the Constitution of 1945 have been harmed or at least bear the potential to be harmed by the applicability of Article 35 letter c along with its Elucidation in the Law regarding the State Attorney. The Petitioners are a part of the victims of an incidence of criminal torture occurring on the date 18 February 2004 and is alleged to have been conducted by a Police having the name Novel who at the time had the rank of First Inspector of the Police (Inspektur Polisi Tingkat Satu, Iptu), whereby as a consequence of the mentioned torture, the Petitioner I suffers physical disability (he walks limp) due to a bullet projectile shot by the Defendant Novel nesting in the foot of the Petitioner I, while the other victim Mulyan Johani alias Aan even passed away. The mentioned torture (by shooting) conducted by the Defendant Novel was in the frame of interrogating the Petitioners and the other suspects accused of an act of theft of swallows (walet birds) nests, whereby the judiciary process against the supposition of theft of swallow nests against the Petitioners and the other suspects had been conducted and the Petitioners have even done their term of punishment. The case of torture alleged to have been committed by the Defendant Novel was just submitted by the Public Attorney to the District Court of Bengkulu for prosecution around the date 29 January 2016. Nevertheless, it appeared that following the appointment of the date of trial, the Public Attorney revoked its Indictment for correction/perfection reason. Rather than correcting/perfecting the Indictment, the Public Attorney instead issued a Decree of Discontinuation of Prosecution Number B-03/N.7.10/E.p.1/02/2016, dated 22 February 2016 (the “SKP2”) to discontinue the prosecution in the case with the reason of lack of evidence and expiry, as indicated by some mass media. It is indeed beyond reason if the case is said to lack evidence as the case has been submitted to the court and the letter of indictment was there, which means that it was in ready condition for prosecution and the evidences were complete, and at the time the case was not or had not yet expired. The SKP2 issued by the Head of the State Attorney of Bengkulu was based on the approval of the Attorney General through the Deputy Attorney General Criminal Acts of the Attorney General’s Office in its letter dated 19 February 2016 Number R-056/E.2/Tpp.2/02/2016. A Prejudiciary legal effort against the SKP2 as such (a quo) was made to the District Court of Bengkulu on the date 1 March 2016 as registered in the Case Number 02/PID.PRA/2016/PN.Bgl., and on the date 31 March 2016, the District Court of Bengkulu issued its judgment which in essence declared the SKP2 invalid. Responding to such Prejudiciary judgment, the Attorney General opened the opportunity to conduct of waiver of a case for the sake of public interest (Dutch: seponering) based on Article 35 letter c of the Law regarding the State Attorney as indicated by some media, among others the news in (i) Kompas.com dated 1 April 2016 bearing the title “Kejaksaan Agung Buka Kemungkinan Deponir Kasus Novel Baswedan” (The Attorney General Opens the Possibility to Waive (Dutch: deponeren, seponeren) the Case of Novel Baswedan) under the link: http://nasional.kompas.com/read/2016/04/01/05100021/Public Attorney.Agung.Buka.Kemungkinan.Deponir.Kasus.Novel.Baswedan, (ii) Tempo.co dated 1 April 2016 bearing the title “Kejaksaan Agung Kaji Peluang Deponering Kasus Novel Baswedan” (The Attorney General Reviews the Possibility to Waive the Case of Novel Baswedan) under the link https://m.tempo.co/read/news/ 2016/04/01/063758775/jaksa-agung-kaji-peluang-deponering-case-novel-baswedan, and (iii) Antaranews.com dated 1 April 2016 bearing the title “Kejaksaan Agung kaji deponering Novel Baswedan” ((The Attorney General Reviews the Waiver (Dutch: deponering, seponering) of the Case of Novel Baswedan)), under the link Constitutional Court of the Republic of Indonesia | 3 http://www.antaranews.com/berita/552991/jaksa-agung-kaji-deponering-novel-baswedan.